ASIC Corporations (Repeal) Instrument 2019/874

Administered by Department of the Treasury

Legislation au F2019L01214 Not in force Legislative Instrument

Legislation content

 

 

Explanatory Statement

 

ASIC Corporations (Unclaimed Superannuation – Former Temporary Residents) Instrument 2019/873

And

ASIC Corporations (Repeal) Instrument 2019/874

 

This is the Explanatory Statement for ASIC Corporations (Unclaimed Superannuation – Former Temporary Residents) Instrument 2019/873 (Legislative Instrument) and ASIC Corporations (Repeal) Instrument 2019/874 (Repeal Instrument).

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

  1. The Legislative Instrument remakes relief previously given by ASIC Class Order [CO 09/437] Departed former temporary residents superannuation – Disclosure relief with a minor amendment to change the location for website disclosure from the trustee website to fund website.
  2. The Repeal Instrument repeals ASIC Class Order [CO 09/437] Departed former temporary residents superannuation – Disclosure relief and ASIC Class Order [CO 09/210] Intra-fund superannuation advice which have become redundant and/ or are no longer necessary.
  3. The superannuation industry has expressed concern that trustees will generally not be aware which of their members have been temporary residents until advised by the Australian Taxation Office (ATO). Trustees will also generally not have overseas addresses for departed former temporary resident members. If the trustee has no address, or only has an Australian address, there will generally be no opportunity for them to obtain the member’s correct address.
  4. The relief in [CO 09/437] provided trustees with relief from the requirement to notify and give exit statements to a departed former temporary resident when a member ceases to hold a superannuation product in the circumstances of Part 3A of the Superannuation (Unclaimed Money and Lost Members) Act 1999 (Unclaimed Money Act).

Purpose of the instrument

 

5.      The purpose of the Legislative Instrument is to continue the relief given by [CO 09/437] with a minor policy change.

6.      If a temporary resident departs Australia and does not claim their superannuation benefits, the ATO will issue the trustee of their superannuation fund with a notice. On receiving notice from the ATO, the trustee must pay the benefits of the departed former temporary resident to the ATO: see Pt 3A of the Unclaimed Money Act.

7.      The payment of benefits to the ATO causes the departed former temporary resident to cease to hold that product. As a consequence, the trustee must give the resident a periodic statement known as an ‘exit statement’: see s1017D(2)(d) of the Corporations Act 2001 (Corporations Act). The payment of benefits to the ATO also triggers the requirement for the trustee to notify a member of a significant event or material change: see s1017B of the Corporations Act.

 

8.      The Legislative Instrument provides relief from the requirements to notify and give exit statements. To access the relief, trustees must disclose in any product disclosure document (PDS) for the relevant superannuation product, and the fund website, the circumstances in which the benefits of temporary residents will be paid to the ATO and that the trustee is relying on the relief.

 

9.      The minor policy change is to shift the location for the website disclosure from the trustee website to the fund website. It was considered the fund website was a more appropriate location for disclosure because it was more likely to be accessed by temporary residents or departed former temporary residents. Members were also more likely to expect information about their entitlements to be available on the fund website.

10.  The purpose of the Repeal Instrument is to repeal [CO 09/210] and [CO 09/437].  [CO 09/210] was made in 2009 and its relief has been redundant since the repeal of section 945A of the Corporations Act.

Consultation

11.  ASIC sought feedback on the proposal to remake, with a minor policy change, the relief given by [CO 09/437] in Consultation Paper 318 Remaking ASIC class order on departed former temporary residents’ superannuation: [CO 09/437] (CP 318).

12.  No submissions were made in response to CP 318.

Operation of the instrument

13.  Section 5 of the Legislative Instrument provides an ongoing exemption for superannuation fund trustees from the requirement to give notice under section 1017B of the Corporations Act and exit statements under section 1017D of the Corporations Act where a fund member ceases to hold a superannuation product in the circumstances of Part 3A of the Unclaimed Moneys Act.

14.  Section 6 of the Legislative Instrument provides the exemption is conditional on the trustee disclosing in the PDS and on the fund website:

  1. the circumstances in which the benefits of temporary residents will be paid to the ATO; and
  2. that the trustee is relying on the relief and will not provide departed former temporary resident members whose benefits are paid to the ATO with notices or exit statements at the time of or after the benefits are paid to the ATO.
  1. There is a further condition that the trustee must as soon as practicable (and in any event within 1 month) provide the departed former temporary resident with information about their unclaimed superannuation money rights, and any other information or documents reasonably requested in relation to those rights, if the resident asks about their interest after the benefits have been paid to the ATO.
  2. Schedule 1 of the Repeals Instrument repeals the whole of [CO 09/210] and [CO 09/437].

 Legislative authority

17.  ASIC makes the Legislative Instrument under subsection 1020F(1) of the Corporations Act. Subsection 1020F(1) provides that ASIC may:

(a) exempt a person or financial product or a class of persons or financial         products from all or specified provisions of Part 7.9 of the Act; or

(b) declare that Part 7.9 of the Act applies in relation to a person or financial product, or a class of persons or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

18.  ASIC makes the Repeal Instrument under subsection 951B(1) and subsection 1020F(1) of the Corporations Act. Subsection 951B(1) provides that ASIC may:

(a)   exempt a person or a class of persons from all or specified provisions of this Part; or

(b)   exempt a financial product or class of financial products from all or specified provisions of this Part; or

(c)   declare that this Part applies in relation to a person or a financial product, or a class of persons or financial products, as if specified provisions of this Part were omitted, modified or varied as specified in the declaration.

Statement of Compatibility with Human Rights 

19.  The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. Instruments (not being regulations) relating to superannuation are not disallowable legislative instruments: see regulation 9 of the Legislation (Exemptions and Other Matters) Regulation 2015. ASIC considers there is a reasonable basis for the view that the instruments to which this Explanatory Statement relates are properly described as instruments relating to superannuation. Nonetheless, ASIC has decided to prepare a Statement of Compatibility with Human Rights, which is in the Attachment.


Attachment

Statement of Compatibility with Human Rights

 

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  

ASIC Corporations (Unclaimed Superannuation–Former Temporary Residents) Instrument 2019/873 (Legislative Instrument)

and

ASIC Corporations (Repeal) Instrument 2019/874 (Repeal Instrument)

Overview

  1. The Legislative Instrument continues the effect of ASIC Class Order [CO 09/437] with a minor change to require website disclosure on the fund website and not the trustee website. [CO 09/437] provided conditional relief to trustees from having to notify and provide an exit statement to departed former temporary resident members when they ceased to hold a superannuation product in the circumstances of Part 3A of the Unclaimed Money Act.
  2. The Relief Instrument repeals [CO 09/437] on the basis that its effect is continued in the Legislative Instrument. The Relief Instrument repeals [CO 09/210] on the basis the relief is redundant following the repeal of related Corporations Act provisions.  

Assessment of human rights implications

3.  The Legislative and Repeal Instruments do not engage any of the applicable rights or freedoms.  

Conclusion

4.  The Legislative and Repeal Instruments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

The ASIC Corporations (Unclaimed Superannuation – Former Temporary Residents) Instrument 2019/873 and the ASIC Corporations (Repeal) Instrument 2019/874 were enacted to address issues related to unclaimed superannuation benefits of former temporary residents. The Legislative Instrument updates the relief previously provided by ASIC Class Order [CO 09/437] with a minor amendment that shifts the location for website disclosure from the trustee's website to the fund's website. The Repeal Instrument repeals the Class Orders [CO 09/437] and [CO 09/210], which have become redundant or unnecessary. This legislative action was undertaken by the Australian Securities and Investments Commission (ASIC) to provide continued relief to trustees who may not be aware of which of their members were former temporary residents and to address the practical challenges they face in notifying these members. The policy objective is to ensure that trustees can comply with the requirements of the Superannuation (Unclaimed Money and Lost Members) Act 1999 while also providing necessary relief in circumstances where communication with former temporary residents is particularly challenging.

Scope and Application

The ASIC Corporations (Unclaimed Superannuation – Former Temporary Residents) Instrument 2019/873 and ASIC Corporations (Repeal) Instrument 2019/874 pertain to trustees of superannuation funds in Australia, specifically addressing the management of superannuation benefits for former temporary residents who depart Australia without claiming their benefits. This legislative instrument applies to trustees of superannuation funds who receive notifications from the Australian Taxation Office (ATO) regarding departed former temporary residents. The instrument provides relief to these trustees from the obligations to notify and provide exit statements to members under certain conditions. This relief is applicable under Part 3A of the Superannuation (Unclaimed Money and Lost Members) Act 1999 and sections 1017B and 1017D of the Corporations Act 2001. However, this relief is contingent upon trustees disclosing specific information about the payment of benefits to the ATO and their reliance on the relief in the product disclosure statement and on the fund website. The Legislative Instrument also stipulates that trustees must provide relevant information to former temporary residents upon request. The Repeal Instrument repeals the ASIC Class Orders [CO 09/210] and [CO 09/437], as their provisions have either become redundant or are no longer necessary.

Key Provisions

The key provisions of the ASIC Corporations (Unclaimed Superannuation – Former Temporary Residents) Instrument 2019/873 (Legislative Instrument) primarily focus on providing relief to trustees of superannuation funds from certain notification and disclosure requirements when dealing with departed former temporary residents whose benefits are paid to the Australian Taxation Office (ATO). Section 5 of the Legislative Instrument offers an ongoing exemption to trustees from the requirement to give notice and provide exit statements under sections 1017B and 1017D of the Corporations Act 2001 when a member ceases to hold a superannuation product under Part 3A of the Superannuation (Unclaimed Money and Lost Members) Act 1999. This exemption is conditional upon the trustees disclosing specific information on the fund's website and in the product disclosure statement (PDS). The required disclosures include the circumstances under which the benefits of temporary residents will be paid to the ATO and that the trustee is relying on the relief, ensuring that trustees do not provide notices or exit statements to departed former temporary residents. Additionally, trustees must provide information about unclaimed superannuation rights and any other relevant documents if requested by the resident after the benefits have been paid to the ATO. The obligations imposed on trustees under this Act include ensuring that the required disclosures are made in the PDS and on the fund's website. This requirement aims to inform members of the circumstances under which their benefits will be paid to the ATO and that the trustees are relying on the relief provided by the Act. Trustees must also provide information about unclaimed superannuation rights and any other requested documents if a resident inquires after their benefits have been paid to the ATO. These obligations are designed to maintain transparency and ensure that former temporary residents are aware of their rights and entitlements regarding their superannuation benefits. Failure to comply with the requirements set forth in the Legislative Instrument can result in various consequences. While the Explanatory Statement does not explicitly detail the penalties or consequences for non-compliance, it is reasonable to infer that breaches could lead to legal actions under the Corporations Act or other relevant legislation. Trustees who fail to make the necessary disclosures or provide required information could face enforcement actions by ASIC, including fines or other sanctions. Additionally, such non-compliance might lead to reputational damage and loss of trust among members, potentially impacting the trustee's ability to manage the fund effectively.

Legal classification tags

Area of Law
Corporate Law & Governance
Superannuation Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Offence Provisions
Regulatory Standards

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.